Monday, November 30, 2009

I think Aaron Wherry pretty much nails what's now going on in Ottawa, capturing the unbridled enthusiasm of the Conservatives today in the House of Commons, now unleashed in their full frontal effort to claim for themselves the support-the-troops field: "The Commons: Mission accomplished." Worth a read.

This is the worst kind of divisive rhetoric seen at the height of the Bush administration's heyday and the Conservatives are fiercely embracing it now. Dimitri Soudas was on the CBC show this afternoon, peddling the notion that retired General Gauthier was treated "like a war criminal" by the opposition during the Afghan committee hearings last week. The fact that the Prime Minister's spokesperson says such things is telling. Mr. Harper's office is pushing this prism now, you either support the troops or you don't. His aggressive photo ops with the military are meant to round out the visuals for this very partisan strategy.

I can't imagine, having watched this movie play out to the south of us, that Canadians are eager to see it brought here. It seems to have that hallmark of desperation to it, a hail Mary of uber-rhetoric. I hope Canadians soundly reject it all. There are legitimate questions about the government's oversight of prisoner allegations in Afghanistan, that's not changed one iota by their p.r. strategy.

From an angry resident of St. Paul's riding in Toronto, held by Liberal MP Carolyn Bennett, a response to the recent Speaker-rebuked Conservative flyer meant to target Jewish voters and win them over to the Conservatives. Here's what the Conservatives are reaping among some voters out there instead (sent via email today):

I received in the mail that "anti-Jewish" ten percenter from John Duncan, MP (purportedly). My response, sent to Harper follows:

Please find enclosed, a letter found in my mailbox from John Duncan, MP. Whoever he is. He’s not my MP. This missive is an insult to me.

First, I am not Jewish, but Christian.

Second, I find its contents racist and inflammatory.

Thirdly, I abhor any thought of being anti-Semitic and over my lifetime have had friends of the Jewish faith. So this insults me.

Fourthly, it is my understanding that this was paid out of revenue from my taxes. That, too, is an insult. It should be financed out of the funds of the Conservative Party of Canada, not from taxpayers. Because, sir, it is a partisan pamphlet. No amount of spin can justify this. And, let me assure you that this doesn’t contribute to any support from me at the ballot box.

I am, to be frank, disgusted.

I should think that Canadians should be reimbursed for the tax money used in this message.

Oh to have a Prime Minister who would give such messages a second thought! Unfortunately, what the Conservatives will now do is just slot this response into the pile designated as "unlikely Conservative voter" and remove him from their list of targeted voters going forward. It may feel quite satisfactory to vent at the Conservatives but in effect, this actually helps them out by culling their voting lists.

Still, worth showing as a good example of the sentiments the Harper government seems to feel no qualms whatsoever about riling up.

"Canada's Operation Hydra winning Afghan villagers over." This entire report is based on one military perspective, a tale of two villages secured during the aforementioned Operation Hydra which occurred on November 15th. News of it reaches the media today. Here's a taste, from its incredible conclusion:

The ANA, through its actions, is succeeding at winning over the confidence of the people.

“They haven't seen that (security) before, which is why they relied on and accepted the Taliban to come in and say, 'We will protect the village, nobody will steal your sheep and nobody will take your sons away. Nobody else is providing you the security, there's nobody else here, nobody cares about your future,’” says Walsh.

“Now there's an alternative.” (emphasis added)

Now don't get me wrong here, this is not to denigrate the efforts of the military or the hopes that people in Afghanistan can live conflict free...but the sole-sourcing here by the reporter to the military alone stands out, it has the impact of a report that's a little too much on the storybook ending side. The report is of an entirely successful exercise, two villages rid of the Taliban simply by the Canadians sweeping in, a battlefield summit seems to be all it takes to confirm it all.

It all reads like a press release, a little too much on the sunny side and leaves a critical reader a little suspect. Again, as the torture allegations and spin efforts occupy discussion in Ottawa, the contrast is jarring.

Prof. Mendes emphasized in an interview that international conventions and law governing prisoner treatment, which has been incorporated into Canadian law through the Crimes Against Humanity and War Crimes Act, places the heaviest burden of responsibility on the chain of command rather than frontline soldiers.

"The notion of command responsibility that became entrenched in international humanitarian law is that if there is allegation of a serious crime in international humanitarian law, and torture is one of the most serious, it puts the heaviest burden on the civilian and military command structure," Prof. Mendes said.

Either the Prime Minister is not aware of this principle, in which case he would be incompetent, or he is aware of this responsibility and is nevertheless deflecting in the manner that he is.

Speaking of command responsibility, this Brian Stewart piece from last week deserves some more attention. He reports on the six step notification process Canada had in place when turning detainees over to the Afghans, i.e., instead of just straightforwardly notifying the Red Cross on detainee details, information went in a circuitous route almost around the globe, to multiple locations in Ottawa, then to the Canadian Embassy in Geneva before it ended up with the Red Cross in Kandahar. Strange process.

That major shift by MacKay is a big story, much bigger than the continued sniping at Richard Colvin. They've changed their story, Harper is deflecting. Looks like it's going to preoccupy this week too.

Sunday, November 29, 2009

But of course he does. That's his thing. False appeals to patriotism and using Canadian soldiers as a shield to the allegations that he and his political leadership in Foreign Affairs and Defence turned a blind eye to torture allegations. No one has pointed a finger at the military other than the Prime Minister through his constant reference to them as these allegations have been discussed. Today he did:

"Let me just say this: living as we do, in a time when some in the political arena do not hesitate before throwing the most serious of allegations at our men and women in uniform, based on the most flimsy of evidence, remember that Canadians from coast to coast to coast are proud of you and stand behind you, and I am proud of you, and I stand beside you."

Officials in Prime Minister Stephen Harper’s office say the agreement, which has been in the works since the summer, will allow Canadian firms to export and import “controlled” nuclear materials, equipment and technology to and from India.

The deal, expected to be signed and implemented soon, has been controversial because Canada cut nuclear trade in 1974 after India used Canadian materials to manufacture its first nuclear weapon.

But the Harper government has been keen to re-establish the relationship because they estimate the energy market in the world’s largest democracy will be worth between $25 billion and $50 billion during the next 20 years.

OK, meaning that this is somehow in Canada's interest because...the principal beneficiary would be the crown corporation, Atomic Energy Canada, Ltd.? Yes:

Ottawa’s Crown corporation, Atomic Energy of Canada Ltd., has been keen to expand into the Indian market.

So as Canada enters this brave new nuclear trading world with India, with all that revenue on the horizon, what is the Harper government poised to do? Privatize AECL, so the benefit of this new deal would accrue to the new private owner of AECL, not Canada, that has invested in AECL to the tune of billions for many years. Am I missing something here?

The federal government is preparing to unveil recommendations on how to restructure Atomic Energy of Canada Limited, and several foreign and domestic players in the nuclear industry are positioning themselves to make a bid for AECL's assets.

If that new owner is not a domestic player - and depending on the percentage of AECL the Harper government sells - you can see what kind of fallout (pardon the pun) there might be given news of this major Indian deal. As we learned last month, Canadians don't support AECL privatization. That sentiment might strengthen, particularly if Harper sells AECL to a non-Canadian entity. High tech jobs in jeopardy, etc.

Saturday, November 28, 2009

Capt. Gord Barnes is in his glory, dancing in a circle of clapping Afghan soldiers on this Muslim holy day of Eid.

The Newfoundlander is the senior medical mentor for the Operational Mentoring and Liaison Team (OMLT) that has been working to strengthen the Afghan National Army (ANA) since 2006.

"This is great. I've never seen them party like this," says a grinning Barnes, with 1 Field Ambulance in Edmonton.

...

"We are so happy you are here," says ANA Sgt. Safiullah Salik, of Canada's efforts to guide the ANA.

...

OMLT acting commanding officer Lt.-Col. Martin Kenneally says these Afghan men are some of the fiercest troops in existence.

"They are very brave and tough as nails," says Kenneally, who is based in Edmonton. "We're in isolated locations and the threat is very high."

And a view on the present goings on in Canada thrown in for good measure, not that it impacts upon legitimate and necessary investigation of how Canada has upheld its international obligations:

Kenneally says the controversy swirling back in Canada over the mistreatment of Afghan prisoners by local authorities is a red herring for troops on the ground.

"Some of the things written about are dated. Overall, for an organization in existence five years in a war, it's amazing.

"They are outstanding soldiers and great people. Our privilege is we get to find that out."

We should be watching reporting such as this over the next little while. It could be all good news all the time from Afghanistan. A measure of the government's desperate need to have some good news come out of Afghanistan as discussions in Canada focus on such inconveniences as the detainee transfers that have occurred. Journalists may find themselves increasingly prodded to come along for such jaunts. The rules that Canadian journalists have to follow when "embedded" in the Afghan theatre of action may very well be colouring the resulting coverage. Can you read the above report and not think that there is a sense of being "in-bedded" with their military hosts?

Friday, November 27, 2009

It's an Emily Haines night...more here. She seems to be quite sought out to sing for the techno crowd no doubt due to her uniquely suited voice for it. The Tiesto one above is not the original, which is best, but it's a more efficient version.

Mr. Speaker, we have and will continue to provide all legally available information.

Let us be clear, as part of the preparations to testify in hearings before the parliamentary committee, individuals like Generals Hillier and Gauthier, recently retired, as well currently serving General Fraser were provided documents relevant to the issues being discussed at the parliamentary committee, as were Mr. Colvin and Mr. David Mulroney.This is a common practice for current and former public servants, to be given information for which they are privy to give testimony before the parliamentary committee. It is the normal practice that we follow.

Second, DFAIT and the Department of Justice, again working together, blocked my access to my own reports from Afghanistan. I was told, “We will decide which of your reports you require.” I was given none of them.

It's not so common after all. Colvin is presently an intelligence officer at the Canadian Embassy in Washington, D.C.

Update: Colvin was speaking of his preparation for testimony in front of the Military Police Complaints Commission to which he had been subpoenaed. He was blocked from accessing his own reports for that purpose, to be clear. On the one hand, access is permitted, on the other, it's denied.

Canadian Finance Minister Jim Flaherty won the support of the opposition Bloc Quebecois for a bill that would allow provinces such as Ontario and British Columbia to merge local sales taxes with a federal levy.

“The Bloc will support the motion,” Pierre Paquette, who leads the party’s day-to-day operations in Parliament, told reporters today in Ottawa. The law may make it easier for Quebec to receive the same kind of compensation other provinces received when they merged their sales taxes, he said.

The Bloc’s decision eases pressure on Liberal Party leader Michael Ignatieff on whether to oppose the change, which is backed by two provincial leaders from his own party. Flaherty plans to bring the bill to a vote before Parliament breaks for holidays on Dec. 11, according to a document provided by a government official.

Now, under the weight of evidence that many international organizations were sounding the alarm about treatment of Afghan prisoners, MacKay says his government knew of the problems and began to act shortly after taking office in January 2006."The decision to change the transfer arrangement would have been as a result of a lot of sources of information including those from Mr. (David) Mulroney, those from other individuals on the ground, Elissa Goldberg, those who were involved in the actual PRT, those who went to Afghan prisons to observe the situation," the minister said outside the Commons."That began almost immediately after we took office . . . . Obviously there were concerns about the state of prisons."

...

MacKay further massaged the Conservative message on Friday."Obviously there were concerns about the state of prisons,"he said. "There were concerns about allegations. There were concerns about information found in reports. There were concerns."We acted on those concerns over two and a half years ago."While the government had previously stated that a specific abuse allegation in the spring of 2007 prompted it to act, MacKay now suggests it was an evolution in thinking."I can't say that there was a specific moment in time that the decision to change the transfer arrangement crystalized in my mind," he said."It was obviously made as a result of recommendations from within the department."

Colvin slowly being vindicated by these shameless Conservatives now? Also interesting, the notion that if indeed the agreement was being considered to be defective and under scrutiny all along, why did Conservative ministers represent to the House of Commons that it was fine and in doing so, arguably mislead parliament? A number of instances are cited in the CP report, linked above. What a fine mess they're in.

The jurisprudence from the International Criminal Tribunal for the Former Yugoslavia and, most importantly, a recent decision from the International Criminal Court itself, has ruled that even if it is established that military and civilian commanders did not have actual knowledge, that is no defence to a charge of complicity in a war crime.

The standard that has been established is that persons in command must take all reasonable steps to acquire such knowledge and then to take all further necessary and reasonable steps to prevent the continuation of the war crime or to punish the perpetrators.

They've been on the "no knowledge" track, now they're on the "reasonable steps" track.

So how much trouble does the Harper government think it's in as a result of Richard Colvin's allegations about the Afghan detainee torture situation? Perhaps one of the biggest blinking indicators came to us last night. Check out these headlines: "Tories will challenge Ignatieff with HST ultimatum,""Federal Tories put Liberals on hot seat over HST." It's change the channel time for the Harper political operators. They are introducing the HST legislation next week, suddenly. With all the accompanying hoopla about how this issue is all about the Liberals. It's the Prime Minister at his worst, playing games while a serious issue unfolds and challenges his government.

We have retired generals testifying in front of the Afghan Special Commons Committee, with all the access in the world to read Mr. Colvin's memos, yet the MPs on the committee are kept in the dark from that material.

When legislators are not permitted to see the documents that the witnesses are, what a farcical low point in annals of democratic governance for Canada. Mr. Harper says he'll release the documents one day, with all the publicity that follows yet the next, his promise is exposed for the sham that it is.

Warren Kinsella points out that most media have missed the nascent beginnings of the next Ontario election campaign. Don Guy will head up Dalton McGuinty's re-election and Mark Spiro will be heading up the provincialist Tory effort. Warren canvassed Mr. Guy, so let's take a peek at the other guy and see where the tentacles might lead.

Mr. Spiro has an interesting background. He is the Principal at Crestview Public Affairs, according to this cached view as of October, 2009. He has been noted as a bright light of Torydom and the lobbying world for some time. Earlier this year the Hill Times described him as "a key adviser and top organizer on the federal Conservatives' recent electoral successes" and one of those lobbyists "...who are not registered but "do everything except pick up the phone to call contacts" and who "play a large role" in policy-making...". This is the so-called "strategic advisory" role which seems to be increasingly prevalent in this special era of Harper accountability. A role which is not covered under the toothless though vaunted Accountability Act which was supposed to end those so-called "revolving doors."

So, like all clever Harper acolytes, Mr. Spiro is not actually registered to lobby any federal government official, minister or department at this time. Any registrations of his date back to 2007 at the latest (search his name). But, prior to that time, he did have a fair number of registrations under the Crestview banner. One of those clients listed was none other than...the Toronto Port Authority. The Officer of Record for that entity was, of course, Lisa Raitt. She of other Port Authority fame.

A clear ruling by the Speaker in response to MP Irwin Cotler's complaint on the egregious ten percenters authored by the Conservative party:

The Conservatives may have damaged the reputation of Liberal MP Irwin Cotler by sending taxpayer-funded flyers into his Montreal-area riding which suggested the Opposition party was anti-Semitic, Speaker of the House of Commons Peter Milliken ruled Thursday.

"In my view, the end result was a negative effect that spilled over to (Cotler) in a very direct and personal way," said Milliken in his ruling. "Therefore, I must conclude that the member for Mount Royal, on the face of it, has presented a convincing argument that the mailing constitutes interference with his ability to perform his parliamentary functions in that its content is damaging to his reputation and credibility."

Milliken said that any reasonable person who had read the Conservative pamphlet would be confused about Cotler's actual views, opening the door for federal politicians to investigate the matter in a parliamentary committee.

The "incontrovertible facts" as Jason Kenney insists were innocently laid out as a manner of putative regular political discourse just don't seem to have been bought by the Speaker at all. Not so incontrovertible.

Instead of squirming and fighting the ruling, a little bit of respect and decorum for the institutions of parliament and their fellow parliamentarians might be in order now that their ugly tactics have been called out by the Speaker.

MacKay is certainly wearing this to date while the Prime Minister lounges in the background. The denials from MacKay that he saw nothing until 2007 seem rather ludicrous at this point. As do the protestations that nothing was of concern here. The memos weren't deemed to warrant action according to Dugas, MacKay's spokesperson quoted in the Globe report. Which moves the goalposts, of course, the story was initially MacKay saw nothing, now that his office has been shown to have received Colvin memos, the story is that they just weren't direct enough in their content. Quite an adjustment. Apparently these guys needed the word "TORTURE" written in capital letters to grab their attention. From the Star, more harmful background for MacKay:

A former government official with knowledge of government actions at the time, who spoke on condition of anonymity, could not recall reading Colvin's emails specifically. But the official said it was virtually impossible that MacKay wouldn't have been at least briefed about Colvin's emails if they went to the minister's office, "since this was the number one issue for the Tories."

"There were major concerns from multiple sources, different agencies, everyone putting out the same warnings," said the source.

The content of the memos should have warranted action, the stance is not credible. Now that they've been shown to have reached a Harper minister in 2006, that's significant.

"What to do now? The only way for the Liberals to really batter the Conservatives is to give them a lethal dose of their own medicine. A strategy of total aggression, starting with personal attack ads aimed directly at the Prime Minister. Mimicking Tory tricks, use dated Harper quotations to pillory him. Drag out the old Harper lines that showed him smearing the country as second rate. Highlight his long list of flip-flops and displays of hypocrisy."

...

Such a blitz would put an end to the Harper free ride.

Total aggression, that sounds exactly right for taking on the Harper Conservatives. Personal attack ads of the variety Martin describes sound quite justifiable, there's lots of hypocrisy material in particular. Goes to trust, saying one thing/doing another, etc. The Harper pledges on the deficit, for example, would be big. Patronage, accountability, lots of material. It's his record after all.

This week's Ekos, why not. Federal numbers: Conservatives 36.9; Liberals 27.1; NDP 15.3; Green 11.4; Bloc 9.4. Recall the big story polling wise over the past week was the tightening of the Liberal and NDP support to within about five percent courtesy of another poll. This result is clearly quite different.

Other items catching the eye here...

Ontario numbers: Con 39.3; Liberals 33.4; NDP 15...

Quebec: Con 22; Liberals 22.7; Bloc 37.4; NDP 9.4

Under 25 age group: Liberals 24.7; Con 21; NDP 18.8.

Daily tracking numbers around November 12 & 13th tightened up, this could have been due to H1N1:November 12: Con 35.4; Lib 28.5November 13: Con 33.1; Lib 30.1. Just one day there, the numbers tend to show a spread of what we're seeing nationally today overall, but interesting.

Would you say the government of Canada is moving in the right direction or wrong direction?Right direction 43.4Wrong direction 43.7There's an opening...strongest "wrong direction" number in Quebec, then B.C. Strongest "right direction" in...wait for it...Alberta, then Saskatchewan/Manitoba, Ontario. (Ontario splits right 44 to wrong 41). Also interesting, the gender split here. Women: wrong direction 44.4 to right direction 38.8. Men: right direction 48.2 to wrong 43.1.

Wednesday, November 25, 2009

So, to sum up some of what we learned at the Afghan Commons committee hearings this afternoon featuring former defence chief Hillier...

The military leaders maintained they did not see any of Colvin's warnings through 2006 or into 2007. CP reports on why:

"We didn't base our work on things like reports written in May or June 2006, which said nothing about abuse, nothing about torture or anything else that would have caught my attention or indeed the attention of others," he said.

He was backed by Michel Gauthier, former head of Canada's expeditionary forces, who said reports in 2006 and early 2007 never even used the word torture - except in one isolated incidence.

They characterized Colvin's reports as second-hand information, similar to the government line, as a rationale as to why "staff" wouldn't have briefed them (Gauthier). The question therefore comes to mind as to whether information was withheld from the military during that 2006-2007 time period. Hillier just read the Colvin reports apparently within the last week:

And it's remarkable that Hillier and Gauthier referenced the Colvin reports repeatedly throughout their testimony yet the committee does not have access to those reports. And they may not get them according to this report: "Justice to block access to key documents in torture probe." Making a farce of the parliamentary committee hearings.

The strategy of the government appears to be: Colvin has testified, let's portray his allegations as being sole-sourced from him, his opinion. Then refuse to release publicly the reports and underlying evidence Colvin wrote/provided on national security grounds.

Have ministers and the Prime Minister refer to Colvin's reports a matters of "his opinion." And see above, the military leadership refers to his reports as containing information not worthy of being brought to their attention. Never mind that Hillier seemed to acknowledge during the hearing today that he was aware of independent reports on torture prior to 2007.

We are supposed to therefore conclude that this is a he said/he said situation, without the committee being provided with proper information. That's unacceptable. There is enough independent information that has caused serious doubt about this framing by the government:

Senior diplomat Richard Colvin was far from being a lone wolf when he sounded alarms about detainee torture in Afghanistan soon after he arrived for a posting in 2006.

At the time, numerous reports in Canada and abroad concluded that torture and abuse was routine in Afghan jails, including warnings from the U.S. State Department, the Afghan Independent Human Rights Commission and the United Nations.

There was even a 2006 report from Canada's Foreign Affairs Department, which asserted that "extrajudicial executions, disappearance, torture and detention without trial are all too common" in Afghan prisons.

Throw in news today that Peter MacKay had the information right in front of him:

The committee is serious about this, as they should be on our behalf, and the allegations need to be properly vetted and examined. The questions just won't go away if this is the route the government insists on pursuing.

Update (6:15 p.m.): See Dr. Dawg on today's hearing, with precise citation of a Colvin memo.

A number of developments this morning that are not good for the Conservatives....

1. There's a poll out indicating that Canadians are overwhelmingly buying Richard Colvin's side of the story:

Canadians aren't buying the Harper government's assertion that there's no credible evidence Afghan detainees were tortured, a new poll suggests.

Indeed, The Canadian Press Harris-Decima survey indicates Canadians are twice as likely to believe whistleblower Richard Colvin's claim that all prisoners handed over by Canadian soldiers to Afghan authorities were likely abused and that government officials were well aware of the problem.

Brilliant, just brilliant choice to smear this man with obvious integrity. Two to one believing Colvin over the government. They've run into their worst nightmare in Colvin or the public is just on to their game at this point. Very heartening result.

2. Second item, news that some of Richard Colvin's reports from Afghanistan were indeed copied to the Foreign Affairs Minister's office:

The office of the Minister of Foreign Affairs was sent some of the reports on Afghan detainees written by diplomat Richard Colvin – the first evidence that his warnings about the torture of prisoners who left Canadian hands might have reached Ottawa's political desks.

It's not clear who the minister was at the time, MacKay or Bernier. But this news makes the repeated claims that Harper ministers - and Harper, for that matter - saw or heard nothing ring even more hollowly this morning.

There are also internal government emails from February 2007 cited in that Globe report that demonstrate "...the Canadian government was acutely aware that it was vulnerable on its record of monitoring prisoners handed over to possible torture by Afghan authorities." This too would seem to back up Colvin just on the heels of Harper suggesting yesterday that other foreign affairs persons did not agree with Colvin, i.e., David Mulroney. Looks like there is internal foreign affairs evidence stating otherwise.

3. Bringing us to the third item, a tough Globe editorial that seems like a bit of a throw down now, the strongest editorial of this past week on the issue by the Globe. The government is transparently "dissembling" they write and they ask a number of questions (see editorial for more details): What did the government know, and when? Who else inside the government was expressing concern? What was the extent and result of the investigations, once undertaken? How widespread is the culture of secrecy? The editorial calls for documentation and testimony from the government by way of explanation:

If the government wants to refute Mr. Colvin's testimony, it must release further documentation – Foreign Affairs' internal human rights reporting; Mr. Colvin's communications; responses from military officials and Mr. Colvin's civilian superiors. It must provide a credible, complete accounting of the investigations, and of who knew what, when: the version of events released on Monday was wholly inadequate. Testimony from the government itself – past and present Ministers of Foreign Affairs, National Defence, and Public Safety; and perhaps the Prime Minister himself – will be needed to complete the story.

If Canada knew about torture, and allowed it to continue, the government needs to say so, and say why. Instead of more attacks on public servants, Canadians deserve unconditioned and complete answers. (emphasis added)

This is good news, the reporting home of Graeme Smith is not taking kindly to the government's efforts to portray Colvin's allegations as those of a suspect lone ranger when Smith backed it all up with his own reporting in 2007. A very serious tone here, mirroring the serious tone of the opposition, that is good to see.

The standard that has been established is that persons in command must take all reasonable steps to acquire such knowledge and then to take all further necessary and reasonable steps to prevent the continuation of the war crime or to punish the perpetrators.

If credible reports from a senior officer in the field began to arrive in May of 2006, and if they detailed the substantial risk of torture to hundreds of detainees transferred to notorious Afghan authorities – who were well known by all of Canada's major allies for indulging in torture – would it be possible to not do anything until more than a year later?

Is 18 months a reasonable period for thinking about developing a new transfer agreement with greater monitoring and tracking of detainees who have been transferred? And do we need to take into consideration the fact that this seems to have happened only after a national newspaper published graphic details about Canadian-transferred detainees who were tortured?

It is almost certain that such a long delay, during which hundreds more may have been tortured, would not come anywhere close to the standard of taking all necessary and reasonable steps to prevent the continuation of the war crime.

Excellent piece covering the doctrine of command responsibility, the Harper government's arguments and our obligations under international humanitarian law all leading to the conclusion that a judicial inquiry is a legal obligation.

A lawyer for the Conservatives says freedom of expression for political candidates is at stake in a Federal Court case over $1.2-million worth of disputed party advertising in the 2006 election.

Michel Decary told the court Tuesday that even though the radio and television ads promoted the party's slogan for the election and Prime Minister Stephen Harper, it was legal under federal election law for local candidates to claim the expenses.

To say that Elections Canada is determining the content of ads, dictating what is local versus what is national, well, that characterization seems compelling on the surface with its appeals to free speech and all. Making it look like Elections Canada is really in the censorship business. As Frum writes:

And Elections Canada has a similar choice to make about how it treats speech. It could give local candidates wide scope to express themselves in the way that those local candidates think most effective — or it can create a new role for itself as the hall monitor of Canadian elections, adjudicating what candidates can and cannot say in their campaigns.

Unfortunately for Frum, the issue's really been settled when we decided to have national versus local spending limits. They mean something. There's no giant pooling of national and local money to buy national ads. So the situation's not as ambiguous and all expressive and choosy as Frum tries to make it out to be. This reader on the Post website pretty much nailed the problem with the Conservative and Frum position:

The rules that exist allow the federal party to spend about $18M on national advertising (or other national expenses) and a local riding to spend about $80K. So, Mr. Frum suggests some Conservative candidates might think they are better served if the party would spend $22M on national advertising and they only spent $10K or so each, but they still collected their $80K from taxpayers as if this was a local expense.

That latter mathematical formulation is the problem with this "free speech" argument, it would render the national versus local spending limits meaningless and ding the taxpayer in the process. Funnily enough, the Conservative lawyers were even arguing yesterday that in a federal campaign, there are no local issues. That's probably news to a lot of voters out there where issues fall differently in different ridings. But whatever absurdity helps them make their argument, right?

Came across this last night and thought it was worth re-circulating for a few reasons. It's a reminder that these issues having been in question for years now yet still remain unaddressed by this government.

Secondly, thought this video was notable for a look at the 2007 demeanour of the Prime Minister in addressing the issues. At about 1:25 in, there's a typical example of the Harper tactic at the time of characterizing the opposition as having more passion for Taliban prisoners than Canadian soldiers. Using Canadian soldiers to deflect from the issue, as he's done throughout, using them as a shield when he's questioned, even recently, about his knowledge of torture allegations in Afghanistan.

But back to the impression conveyed in the video...does this strike you as a Prime Minister taking the issue seriously at the time, interested in getting to the bottom of the issue? Or is it a Prime Minister more interested in deflecting the questions from the opposition and viewing the matter as some kind of a political game? It has some bearing on our present dealings with the issue as the Afghan committee proceeds and allegations of the Prime Minister's own micro-management of the issue have appeared. Did he think the opposition just wasn't strong enough to challenge whatever his government actions at the time may or may not have been? The video strikes me as the typical, unserious Conservative approach to the issue, that they've never really cared about it, just viewed it as a political problem to be managed.

Thirdly, Liberals might be interested in the Ignatieff present here. More of that would be a good thing, nothing wrong with unbridled enthusiasm in the pursuit of accountability on this human rights issue.

1. Despite a set witness list at the Afghan Special Committee, with a pretty fairly balanced set of representatives of various Afghanistan mission participants, the Conservatives were forcefully pushing the issue today, led by the Prime Minister.

More uber-irony from the Prime Minister, it's Kafkaesque to the hilt. There's little that they believe they are not entitled to do when it comes to life on Parliament Hill, including treating Commons Committees as p.r. outlets for preferred views to be suddenly inserted.

What the Conservatives are attempting to do, and it may be acceded to via a compromise now, is elbow their witness in. This is particularly incredible when so many potentially valuable witnesses on the issue have been arguably stifled by the government itself in respect of their testimony at the Military Police Complaints Commission. Read this remarkable letter by Richard Colvin's counsel (pdf) to the Justice Department detailing how the government has intimidated witnesses from coming forth. It's distinctly counter to Harper's public statement above as he seeks to have his preferred witness appear. They say one thing in public yet do something totally opposite in private.

"In every single instance, Canadian diplomats and Canadian soldiers, whenever they are aware of abuse, take the action they are required to take under international law because that is how this country acts and we are proud of those people," Harper said in the House of Commons. (emphasis added)

This is a studious dodge of governmental responsibility, laying responsibility at the feet of the diplomats and Canadian soldiers to act in accordance with international law. Why is he hanging these obligations on others?

3. And if you missed it, another classic "boo" tactic from the Prime Minister, missing the point of it all once again:

Shameless in his willingness to say anything to distract and engage in non-responsive talking points. Again, he's doing the MacKay thing, sending the message that Canada presumptively considers all allegations as suspect. He really should read that report of the Afghanistan Independent Human Rights Commission:

"Torture and other cruel, inhuman or degrading treatment are common in the majority of law enforcement institutions, and at least 98.5 per cent of interviewed victims have been tortured," said the commission's April 2009 study.

The independent study, which tracked abuse claims between 2001 and early 2008, shows the vast majority of them - 243 - were levelled in 2006 and 2007.

That is the time frame when Colvin was in Afghanistan and warning the federal government about torture.

It's irresponsible for a Prime Minister to be essentially mocking such claims.

4. It should be kept in mind that the Afghan Committee itself can really only achieve a certain level of review of the issue. The committee is inherently capable of being slighted as partisan given its political makeup and more importantly, there's simply not the time to achieve significant examination and pursuit of the issue. 7 minutes per MP is nonsensical. These hearings should be day long affairs. Why a public inquiry continues to be the logical solution.

That is what the wall of opposition is doing on the Afghanistan Special Commons Committee. As set out in this report, the government's effort to foist their chosen witness, David Mulroney, on the committee has met with professional, principled objection. Mulroney wishes to appear and cites his name coming up in Richard Colvin's testimony last week. Yet how is a committee supposed to prepare for a witness' testimony properly without having read any evidence in connection with that witness? Commons committees are not soapbox platforms to be manipulated by any party that perceives a sudden benefit in getting a particular witness in front of it. It makes a mockery of the committee system for individual parties to believe they can just show up at will and control the agenda.

Second point this morning, when you consider that statement released by the government yesterday, it really is quite glaring how that period of 2006-early 2007 is left unaddressed given the warnings by Richard Colvin to senior foreign affairs and defence officials. The admission that there were 3 halts to detainee transfers in 2009 and one in 2007 just magnifies the earlier omissions in acting on Colvin's reports. It's not an answer to say that steps were taken later yet mysteriously provide no accounting for the earlier time period.

And with respect to the admission that there were recent halts in detainee transfers, that news is still raising questions about the government's thinking:

"How many times do you need to find something wrong before you're criminally negligent in transferring?" asked Amir Attaran, who has represented Amnesty International and the B.C. Civil Liberties Association in a failed court challenge of Canadian detainee policies in Afghanistan.

"You can't say that this is a game of cat and mouse and that each time somebody is found abused we'll stop briefly. That doesn't work. At some point you have to realize you're dealing with a system in which the risk of torture is rampant and to persist is to aid and abet it, and aiding and abetting torture is as much of a crime as torture itself."

But that would require a government with an inclination to provide leadership on a human rights issue. Given this government's track record (Khadr, abandoned Canadians overseas, for e.g.), it's fair to say we don't have one of those.

The "in and out" litigation is being heard in the Federal Court this week. This is the one where the Conservatives are seeking to exploit what they believe is a loophole in the Elections Act. It's a gigantic loophole that they're arguing for, actually, one that would essentially render meaningless the federal campaign spending limits on national parties. Their argument is that they can transfer funds from the cash rich federal party into the local ridings and then have the local ridings buy national ads - yet pass those expenses off as locally incurred. This is what they did in the 2006 federal election and in doing so exceeded their national spending limit by $1.2 million. It's why they're in court this week. The Chief Electoral Officer disallowed those supposedly "local" candidate expenses because they weren't in fact locally incurred. This lawsuit is essentially a defensive shield against that Elections Canada ruling.

One of the kickers to this situation is that the Conservatives, who transferred this federal money in and out usually on the same day, want the local candidates to get the local candidate reimbursements for those funds, 60% of which are paid for by the taxpayer. An obscene, aggressive way for the Conservative party to make some extra cash on the Canadian taxpayer's back.

In addition to arguing for the "in and out" loophole, they're also putting forth the argument that the Chief Electoral Officer is essentially a neutered automaton. That is, in this case, they're arguing that Marc Mayrand the CEO had no power to disallow the above expenses, he has no power to investigate any expenses presented to him. This led to incredulity from the judge yesterday who pointed out the existential absurdity then of Elections Canada actually having an audit department that Canadian taxpayers pay for to, you know, assess the propriety of candidate expenses under the auspices of the CEO. The Conservatives even went so far in their defensive maneuvering as to argue that the CEO would have to presumptively certify fraudulent expenses put to him, given that he theoretically has no discretion to reject them. How ridiculous. The CEO would have to refer the matter to the federal elections commissioner for investigation. They must have some legal basis for making this argument but it certainly seems bizarre.

These Conservative arguments are consistent, however, with the Stephen Harper version of Canada. It's one where financially level playing fields in elections are not valued. It's one where Elections Canada's effectiveness as an independent arbiter in our electoral system is weakened.

Some of the coverage yesterday: Canwest, Star, Sun and CP. Le Devoir is behind a wall but you do get a glimpse of Helene Buzzetti's opening paragraph where she referred to the judge as having "manhandled" the Conservative lawyer yesterday, a dynamic shared in the CP reporting. Hopefully that's a sign of things to come for the Conservative case.

Great little video here, just a straight up interview but this protester is disarmingly candid and pretty effective. He conveys frustration from youth on the environment issue quite clearly here. And he's got his facts and figures all lined up and he's ready to quote them! Swats back Solomon's characterization of him and his protest band as engaging in "radical" action. A little idealistic in response but he gets to the point: "No, what's radical is that "Prentice" is one of the worst for blocking progress on climate change!" Also interesting, the way he repeatedly refers to "Prentice" almost as an epithet throughout. Maybe we should make a verb out of it: to "Prentice" meaning to block meaningful progress on any given issue.

They certainly drew attention to the issue yesterday, before ultimately being arrested and charged with mischief.

More on the issue here as Quebec breaks from the Canadian position in advance of Copenhagen, committing to 20% reduction targets in greenhouse gas emissions from 1990 levels by 2020. That would bring Quebec in line with the European Union's target. Quebec will be represented within the Canadian delegation, yesterday's move by Premier Charest giving us a preview of the mixed signals that will be coming from Stephen Harper's laggard Canada while at Copenhagen.

4. Release government statements suddenly that incredibly now include details that have been heretofore untold to the Canadian public. Only when they are under the gun, fighting to keep a political storm under wraps, do they deign to release such information. The statement includes information on the halts to detainee transfers referenced on the weekend by General Natynczyk. In other words, they were forced to speak to it given his disclosure. Notably, the halts seem to have occurred three times in 2009 and once in November of 2007. None during 2006 or early 2007 when Colvin's warnings were made. That's remarkable.

Since the May 2007 Supplementary Transfer Arrangement was implemented, Canada has temporarily paused transferring detainees once in November 2007 and on three occasions in 2009. The first two pauses in 2009 were related to allegations about treatment, the last pause was related to access to facilities. All three pauses were for brief periods of time. The first allegations in 2009 were investigated by Afghan officials and appropriate corrective actions were taken. In the latter case, Afghan officials moved quickly to restore unrestricted access to facilities. When Canadian officials were satisfied that the original concerns were appropriately addressed, the transfer process resumed.

The problem of ignoring Colvin's warnings throughout 2006 and 2007 is unaddressed. There are additional details there regarding present Canadian policy on detainee allegations and it reads like a lawyerly defence to "command responsibility" allegations.

Some miscellaneous points on the Afghanistan torture issue from the past day...

1. There is arguably a legal duty for the Harper government to undertake an independent investigation, i.e., a judicial inquiry on this matter, now that these allegations have come to light. Canada is a founding member of the International Criminal Court and that court will start prosecution mechanisms if a member state does not take action itself in the face of allegations of war crimes. Watch Professor Errol Mendes here (towards end of video on these points, an article on the CTV site gets a key statement by Mendes wrong, so ignore it and watch instead. And ignore the misguided video description too).

Mendes speaks of the "command responsibility" theory which is essentially that if someone in a position of civilian or military leadership did not take all necessary and reasonable steps to stop the potential commission of war crimes, then there is the potential that command responsibility for torture may follow. He stated that it is not a defence to say that you didn't know there was a substantial risk of torture. The defence would require that you actively take steps to ensure it is not happening. Given the story that the Harper government is telling to date and the disclosures we're reading, this is something to keep in mind.

2. That report on General Natynczyk and his admission that yes, Afghan prisoner transfers were halted over safety concerns multiple times over is a big development from the past day. As was pointed out last night, this is contrary to what the government's line has been, that transfers were only halted once in November 2007. The very fact that they were halted multiple times lends credence to Richard Colvin's testimony, again. Why would they stop the transfers multiple times? They must have been acting on information of some kind, of course. When did these additional stops occur in the timeline? That would be an interesting fact to uncover, perhaps during this week's testimony by military officials, if it proves fruitful. If the halts to the transfers that Natynczyk speaks of coincided with Colvin's warnings, then the government's smearing of him would fall apart to a greater extent than it has already in the past few days (see Natynczyk's aforementioned information, statements from a NATO official, an EU diplomat, and the Afghanistan Independent Human Rights Commission report of April 2009 substantiating torture in Kandahar - reported at first link above - and so on).

3. There seems to be an argument bubbling out there in some quarters that war is tough and things happen. I.e., what did we really expect to occur over there in a war racked society and various other excuses. Which is all nonsense. What should have been done instead is along the lines of this suggestion:

Semple said the unfolding controversy in Canada should be used to confront the Afghan intelligence agency.

"Simply taking promises that it won't happen aren't good enough," he said.

Semple said Canada, the United States and other allies should march into the NDS in Kabul, threaten to stop paying the bills and say: "We can't back institutions that are involved in torture."

Or they should have run their own facility, for example. Speaking of which, that may be what the British are in fact doing:

But muzzling the information that you are receiving from your own top diplomats and intermittently stopping transfers, only to start them up again into a widespread prison system - with secret prisons that can't be checked - and which has been shown to be torturous isn't sufficient.

And of late, having the Canadian Minister of Defence publicly pronouncing that a single, solitary instance of torture can't be proven is the opposite of what we should be doing. Those public pronouncements from MacKay are absurd because he's basically been discredited at this point and secondly, it doesn't do anything to stop the Afghans from torturing. It actually sends them the distinctly wrong message that Canada will give them cover for it. That's what MacKay is presently doing, it seems to me, in his vigorous denunciation of Colvin and his refusal to accept the reports all around him. A very poor message he's sending on behalf of Canada.

4. For the record, Ignatieff has pressed the government in the House of Commons before on the issue of torture. See Hansard, for example, from the peak of the spring 2007 allegations:

Mr. Michael Ignatieff (Etobicoke—Lakeshore, Lib.): Mr. Speaker, I have been in Afghan places of detention and I have no confidence in the capacity of the Afghanistan Independent Human Rights Commission to protect prisoners.

They were beaten, whipped, starved, frozen, choked, electrocuted. These are very serious allegations, and Canada's honour is at stake.

When will the Prime Minister replace his incompetent Minister of National Defence with a minister who can make sure our allies and Canada itself respect the Geneva convention?

To suggest that there's some reluctance or avoidance is just not the case. What is the issue is this government's record in respect of what they did when they heard about these allegations. Let's keep that top of mind.

Sunday, November 22, 2009

Just a brief post here to pass along two items on the issue of the government's handling of Afghan torture allegations.

This CP report makes news in that General Natynczyk, the Chief of Defence Staff, is disclosing for the first time that the transfers of detainees were halted more than once, in contrast to what the government has been telling us. This pokes at the credibility of the Harper government yet again. Buried at the end of this excerpt though is a perhaps telling point for those following the issue to note:

An Afghan agency, at one time entrusted to monitor Canadian-captured insurgents in Kandahar, says it has documented nearly 400 cases of torture across the war-ravaged country.

The latest report from the Afghanistan Independent Human Rights Commission, a translated version of which was obtained by The Canadian Press, comes as Canada's top military commander confirmed the army halted transferring prisoners to Afghan authorities on more than one occasion.

Speaking at the close of an international security conference in Halifax, Gen. Walt Natynczyk wouldn't say how many times the transfers were stopped.

There has been only one occasion when the federal government has publicly acknowledged that the army stopped handing over prisoners - in November 2007 - because of torture concerns.

The general said he couldn't offer details because he didn't want to pre-empt statements that former military commanders are expected to make before a special House of Commons committee this week.(emphasis added)

Looks like Richard Colvin's got even more company. The effort to tar him this past week has brought out allies, it appears, providing information to corroborate his testimony last week. An additional report today magnifies the story enormously for the Prime Minister himself:"PMO issued instructions on denying abuse in '07."

Prime Minister Stephen Harper's office used a "6,000-mile screwdriver" to oversee the denial of reports of Afghan detainee abuse when the scandal first erupted in 2007, according to a former senior NATO public affairs official who was then based in Kabul.

The former official, speaking on condition his name not be used, told the Toronto Star that Harper's office in Ottawa "scripted and fed" the precise wording NATO officials in Kabul used to repudiate allegations of abuse "at a time when it was privately and generally acknowledged in our office that the chances of good treatment at the hands of Afghan security forces were almost zero."

"It was highly unusual. I was told this was the titanic issue for Prime Minister Harper and that every single statement that went out needed to be cleared by him personally," said the former official, who is not Canadian.

"The lines were, 'We have no evidence' of coercive treatment being used against detainees handed over to the Afghans. There were very clear instructions for a blanket denial. The pressure to hold to that line was channelled via Canadian military and diplomatic personnel in Kabul. But it was made clear to us that this was coming from the Prime Minister's Office, which was running the public affairs aspect of Canadian engagement in Afghanistan with a 6,000-mile screwdriver."

...

The former official, speaking in a telephone interview Saturday, said that throughout the ISAF Headquarters in Kabul "everyone knew that if a detainee got handed to the NDS (the National Directorate of Security, Afghanistan's intelligence service), they were not going to be in any way looked after the way they should have been. (emphasis added)

Some issues these allegations raise...

The Prime Ministerial denials to date about involvement in the issue should be questioned. The credibility of the Prime Minister is being called into question directly. Presumably, the NATO official cited in the report could name the individual who told him that the Prime Minister himself needed to clear statements on the issue personally.

At a minimum, the case for an inquiry gets much more compelling with this report. A relevant precedent for action may have been set by Prime Minister Harper's own terms of reference on the Mulroney matter, where the justification for the calling of a judicial inquiry was that the allegations with respect to Mulroney "raise questions respecting the integrity of an important office of the Government of Canada," i.e., the Prime Minister's Office. Here, however, Mr. Harper is in a conflict of interest, given these allegations, and whatever actions are taken now need to be viewed with that in mind.

Saturday, November 21, 2009

I'm going to come to the defence of Janine Krieber here for the audacity of having said something controversial in the present Canadian political climate. It's all breathless ooohing and ahhing and a bit too much fascination with the event. It should be kept in perspective. Ms. Krieber is a distinguished political science professor and clearly a very intelligent, independent woman in her own right. The fact that she might have a view on present Liberal difficulties is not news. That she chose to publish a note publicly, however, is news and it's fair for media to run with it for that reason. But that note may have been published hastily given that it's apparently been retracted. And I'm assuming it's been verified that she did indeed write it.

Some perspective should be added to these discussions, however. As Stephane Dions wife, she clearly feels a personal sting from his time in leadership and his removal. That's understandable and I'd be heavily influenced by such an experience too. That should be a fact that should be taken into account when reading her views and I'm sure that's an obvious point to anyone reading. She gets a big free pass from me. But it's her view, it's not necessarily translatable at all to a general Liberal unrest.

Having said that, she's not doing anything more than airing issues that are being discussed by Liberals these days. These are tough times, the polls aren't great, it's rebuilding time. It's not surprising that a thinking Liberal might write something like Ms. Krieber did. Let's be honest about it, it's not a surprise that someone would question Ignatieff's leadership. Even he knows that, see the reference in the CP report below. It's difficult to have constant slings coming from within the party but that's par for the course these days.

These are days of rude awakenings, this is one more. Krieber is one voice among many at the moment in the Liberal party doing soul searching. There's nothing to be afraid of in that. Embrace it and act seriously to address such criticisms.

Meanwhile, there are plenty of other issues that should be preoccupying the political class at the moment. The focus needs to be this government and itsagenda. I hope Liberals stay focussed on that and stop feeding the ravenous appetite there is out there for Liberal party turmoil. There are lots of willing beneficiaries happily cheering it on.

First up, Professor Errol Mendes powerfully sets out what is at stake for Canada as Richard Colvin's allegations of Afghan detainees handed over by Canada to a knowingly torturous regime have come to the fore. An important read for anyone wanting to understand the scope of the possible damage done here and the important implications for Canadian democracy and the rule of law that are embodied in the way the Harper government has chosen, from the start, to handle these allegations, by silencing and denying: "Grave allegations."

What Colvin has asserted raises the question of whether such complicity by Canadian officials and possibly their political masters (if further evidence is uncovered that they were informed), had already happened in the 17-month period during which he was sending his reports to the highest levels of government. This could be one of the gravest indictments against those who govern this country. Canada as a member state of the International Criminal Court could even be investigated for war crimes if the evidence mounts that there were credible reports of complicity with torture during the 17-month period of Colvin's reports.

These allegations, if proven, go beyond the detainee abuse. It goes to what is the most sacred in our constitutional and democratic society in Canada. The rule of law requires that no one is above the law and if there is any actual or potential evidence of wrongdoing or illegality, it must be brought to the attention of the appropriate authorities to either stop it or prevent any future occurrence. It should also be a cornerstone of responsible government in Canada that those who govern must be accountable to the Parliament of Canada, which means not misleading members of the House of Commons or Senate if they have information that potentially implicates wrongdoing or illegality by Canadian officials.

The duty to not seriously obstruct the work of critical Canadian institutions would also apply to any court or quasi-judicial commission such as the Military Police Complaints Commission, whose task is finding out if the military police, on orders from those higher up the chain of command, knew or ought to have known of the treatment of detainees once they transferred to the Afghan security organization. Colvin revealed that he was threatened by senior Department of Justice lawyers with prosecution for breaching national security if he co-operated and testified at the commission.

The seriousness of what Colvin has alleged, if proven and corroborated, indicates that where there is a political and accompanying bureaucratic will, the rule of law and democratic accountability can be endangered. This would jeopardize the present and future well being of Canada, and the legal obligations of its officials and institutions. This is something which should concern every Canadian who cares about these fundamental values on which this country has been built. A judicial public inquiry is urgently needed to protect the Rule of Law and democratic accountability in Canada.

A forceful reminder as these parliamentary hearings go forward about how significant the issue really is. This is clearly not just about the facts of torture on the ground in Afghanistan.

A public inquiry is necessary. Taking this discussion outside of partisan bickering in the House seems essential to finding out what Colvin knew, who else might have known what he did, and what role - if any - Canada has played in the abuse of Afghan civilians. Colvin's allegations point to moral corruption - that's not what Canadians were told would be achieved in Afghanistan. As it does for Britain or the US, Canada's role in Afghanistan walks a fine line between defining who we want to be, and the kind of criminals we're supposed to be fighting against. We need to know which side we're walking on.

Further, from Amir Attaran's appearance on CBC the other day, here's an excerpt from a memo which was obtained in that Federal Court lawsuit against the government over the detainee issue. I believe it's dated November 2007, see notation at top of document and report here. It's a memo from a diplomat sending it to a host of individuals, including David Mulroney, former deputy minister of the federal government's Afghan Task Force, and Colleen Swords, former assistant deputy minister in the international security branch of Foreign Affairs or go here to download for your own viewing. We are to believe that these high ranking Harper government officials never discussed such matters with their superiors, apparently. Page 1 (click to enlarge):

Page 3:

"The rule of law requires that no one is above the law and if there is any actual or potential evidence of wrongdoing or illegality, it must be brought to the attention of the appropriate authorities to either stop it or prevent any future occurrence." Now did the Harper government do that?